We’ve discussed the basic process and remedies for implicit bias in other posts, how implicit bias manifests in jury trials. In this post, we explore the conflicting opinions of the researchers. The academic consensus is most notable because of its lack of consensus, and debates about implicit bias are a complicated minefield that has caused a considerable amount of debate in academia.
The debate centers on the psychometric properties of a computer-administered test called the Implicit Association Test or IAT. The test was developed by Banaji & Greenwald in 1995 with a focus on “unconscious” racial biases. Other iterations of the test assess biases related to gender, sexual orientation, religion, and other areas of potential bias. The test measures one’s cognitive association between concepts or feelings and objects or people. Given the pervasiveness of bias, the IAT seems to be valuable in revealing the presence of negative associations with different groups.
However, there has been considerable controversy about the IAT that has spawned an academic brouhaha that has lasted for 20 years without a clear resolution. The controversy pertains to the implications of the IAT: Does it identify biased people? IAT advocates say yes and IAT opponents say no. The other major issue is, Can it predict future behavior? Again, Pro-IAT scholars say yes, while critics of the IAT say no.
The original authors of the test, Banaji & Greenwall created the term, “implicit bias.” They developed the Implicit Association Test to measure the valence of associations that individuals have about others. Certainly, it was groundbreaking research and quickly spread through academia. Banaji & Greenwald were excited about the potential value of the IAT.
Criticism of the IAT springs from concerns about using associations to predict actual biased behavior. The creators of the IAT are concerned about dismissals of test results and what the results mean. They also felt that criticisms allow others to devalue indications of actual biased behavior as just another flawed psychometric measure.
This brings us to the perspective of the anti-IAT researchers. Most are concerned about how employers and lay people might use IAT test results to make decisions about the test taker. Blanton, Jaccard, and colleagues have published responses to Banaji & Greenwald. The strongest criticisms are about the validity of the test. Does the test actually measure bias? Is it any different from what explicit bias tests measure? Additionally, IAT critics cite poor test-retest reliably. That means that a test taker’s score or results might be different each time they take it. Measures like the IAT, they argue, do not provide actionable results. Finally, critics of the IAT are concerned about how test results indicating “bias” could impact the test taker’s self-concept without explanation or understanding.
Fortunately, there is some agreement among academicians – both IAT advocates and IAT critics agree that the test results should not be used to make important decisions (i.e., employment) about test takers.
Implications of IAT for Jury Selection
At conferences we have been asked by audience members whether the IAT should be administered to jurors in cases where there is a potential bias against one of the parties on the basis of race. We do not believe that that administering the IAT is practically possible, nor do we believe that structuring jury selection around the results of an IAT would produce reliable results that would necessarily result in an unbiased jury. The IAT has been extremely useful because it encourages people to explore their own unconscious biases. This has had an extremely beneficial impact on our ability to assist our clients in ferreting out jurors’ biases. Further, the IAT is so well known that many jurors raise this issue themselves. Paradoxically, those who raise the issue of unconscious bias are often the ones who are most reflective about their own potential bias, and often the least likely to exercise bias in their decision-making as a juror. Those who easily dismiss the existence of unconscious biases are often the ones who appear more likely to exercise bias, unconscious or conscious, in their decision-making as a juror.
One of our consultants had a conversation with a federal court judge about how awareness of unconscious bias, and an unconscious bias jury instruction, influenced an verdict at trial. It was a criminal case with an African-American defendant. During the deliberations, the jurors were initially leaning toward a guilty verdict. One juror told the others that they were obligated by the jury instruction on unconscious bias to go through the evidence and weigh the facts to the law that they were given. When the jurors went through the deliberations process as instructed, they reached a unanimous verdict of not-guilty. After the verdict was rendered, the judge spoke with the jurors. One juror specifically mentioned the unconscious bias instruction as the catalyst for going through the evidence thoroughly, and reaching the not-guilty verdict.
This is a practical application of the benefits of the IAT – it provides individuals and the public with an entre to thinking about how unconscious biases potentially structure their assessments of others, and prompts a person to think about whether their initial assessments were fair and accurate. In the context of jury deliberations, exploring the basis for one’s initial assessment does not necessarily mean that those initial assessments are incorrect. The debates around the IAT and unconscious bias have been successful in bringing the issue of unconscious bias to the forefront, and encouraging people to pause and make sure that their assessments are not based on culturally entrenched biases.